The BPU's order was based upon appellants' participation in a complex conspiracy to rig bids on garbage collection contracts in northern New Jersey. The criminal charges arising out of this conspiracy have been the subject of three reported opinions. State v. New Jersey Trade Ass'n, 96 N.J. 8 (1984); State v. Scioscia, 200 N.J. Super. 28 (App.Div. 1985), certif. den. 101 N.J. 277 (1985); State v. N.J. Trade Waste Ass'n, 191 N.J. Super. 144 (Law Div. 1983).

It simply does not deal with a "flight" issue. In upholding the trial court's denial of Melendez's severance motion the Appellate Division relied on State v. Scioscia, 200 N.J. Super. 28, 490 A.2d 327 (App.Div.), certif. denied, 101 N.J. 277, 501 A.2d 942 (1985). In Scioscia the court held that the trial court's instructions to deliberate separately regarding each of the defendants cured any impairment of the co-defendants' rights that might have resulted from the trial court's denial of a motion for severance after one defendant had pled guilty during the trial.

does not of itself encompass a sufficient threat to compel a separate trial." State v. Scioscia, 200 N.J.Super. 28, 42 (App. Div. 1985); see also Brown, 118 N.J. at 605 ("The danger by association that inheres in all joint trials is not in itself sufficient to justify a severance . . . ."). "A severance should not be granted 'merely because it would offer defendant[s] a better chance of acquittal.'"

The conspiracy was implemented through the New Jersey Trade Waste Association which assigned specific collection areas to specific collectors and these designations became "property rights." See State v. Scioscia, 200 N.J. Super. 28, 32-33 (App.Div. 1985), certif. den. 101 N.J. 277 (1985).

The trial court here, however, is of the opinion that if the death qualification is not unconstitutional for one who may face the death penalty, then it should not be any less constitutional for a non-capital defendant, especially where the jury is instructed to consider defendants separately. In State v. Scioscia, 200 N.J. Super. 28, 43 (App.Div. 1985), certif. den. 101 N.J. 277 (1985), the court reiterated that "although the danger of guilt by association underlies all joint trials, this peril can generally be defeated by forceful instructions to the jury to consider each defendant separately."

den., 56 N.J. 248 (1970), cert. den., 400 U.S. 867, 91 S.Ct. 108,27 L.Ed.2d 106 (1970), the Appellate Division rejected defendant's claim that three charges should have been severed, noting that prejudice was not suffered because the jury convicted on one but refused to convict on the remaining two charges. Id. at 306; see also State v. Scioscia, 200 N.J. Super. 28, 43 (App.Div. 198 5) ("the jury's ultimate verdict, convicting four defendants while failing to resolve the question of guilt or innocence of the others, convincingly demonstrates that they were able to comply with the court's charge"). The absence of prejudice to defendant, Moore, is evidenced by the jury's verdict, and more importantly by the fact that the evidence of these other crimes would have been admissible under Evid.R. 55.

Although defendant, Cosby, and Bailey are not indicted on identical charges, the fact that some evidence will be admissible only as to one defendant does not in and of itself amount to grounds for severance. State v. Scioscia, 200 N.J.Super. 28, 42 (App. Div. 1985) (stating "the potential for prejudice inherent in the mere fact of joinder does not of itself encompass a sufficient threat to compel a separate trial"). While the "danger of guilt by association underlies all joint trials," the court can mitigate this peril by "forceful instructions to the jury to consider each defendant separately."

However, "that fact by itself, is not sufficient grounds for a severance." State v. Scioscia, 200 N.J.Super. 28, 42 (App. Div. 1985). Indeed, severance is not required when "the vast bulk of the evidence presented at trial pertain[s] to the guilt of . . . co-defendants."

Although all joint trials present the inherent "danger of guilt by association . . ., this peril can generally be defeated by forceful instructions to the jury to consider each defendant separately." State v. Scioscia, 200 N.J.Super. 28, 43 (App. Div. 1985) (citation omitted). Severance is sometimes warranted, and a court should "'balance the potential prejudice to defendant's due process rights against the State's interest in judicial efficiency, '" and may grant that relief where, as Davis argues, the "defenses are antagonistic and mutually exclusive or irreconcilable," rendering separate trials necessary.

However, "the potential for prejudice inherent in the mere fact of joinder does not of itself encompass a sufficient threat to compel a separate trial." State v. Scioscia, 200 N.J. Super. 28, 42 (App. Div. 1985). "The danger by association that inheres in all joint trials is not in itself sufficient to justify a severance . . . ."